Adultery

Adultery means Sexual intercourse between a married person and a third party. Courts once used adultery, once the sole ground for divorce in some jurisdictions, to punish the guilty. Today courts are more interested in the economic impact of adultery, if any, on the marital estate. The legal definition of adultery however varies from country to country and statute to statute. While at many places adultery is when a woman has voluntary sexual intercourse with a person other than her husband, at other places adultery is when a woman has voluntary sexual intercourse with a third person without her husband’s consent. In the traditional English common law, adultery was a felony. Although the legal definition of "adultery" differs in nearly every legal system, the common theme is sexual relations outside of marriage, in one form or another.

Hindu Marriage Act, 1955, Section 13(1)(i) describe Adultery as a ground of divorce but does not describe what is Adultery? Adultery is describe under Section 497 of the Indian Penal Code (IPC), 1860, as an offence and is punishable. Section 497 describes Adultery as under:

Section 497. Adultery. - Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rap, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case the wife shall be punishable as an abettor.

Analysis

An adultery can be committed only by a man and not by woman;

The person committing adultery must also know or should have reason to believe that woman with whom he had intercourse is the wife of another man; and

The sexual intercourse should not amount to the offence of rape.

Adultery cannot be committed without a woman’s consent. Yet, the section burdens man alone for the offence. Though the reasons for this may be justifiable, the woman here is always treated as a victim of the offence. Hence, this section does not contemplate a situation where the same married woman has sexual intercourse with more than one person other than her husband without her husband’s consent. It is highly implausible that even in such a situation the woman would always be the victim and not the person who provokes the offender for the crime. No doubt that the law, as it stands, is inadequate. But the law still stands as it is.

Constitutional Validity of Section 497

In Yusuf Abdul Aziz Vs The State of Bombay and Husseinbhoy Laljee, 1954 SCR 0930 : AIR 1954 SC 0321, the Constitutional Validity of Section 497 was challenged before Apex Court under Article 14 of Constitution of India on the grounds that it makes an arbitrary discrimination based on sex. Supreme Court held that:

Article 14 is general and must be read with the other provisions which set out the ambit of fundamental rights. Sex is a sound classification and although there can be no discrimination in general on that ground, the Constitution itself provides for special provisions in the case of women and children. The two articles read together validate the impugned clause in section 497 of the Indian Penal Code.

The alleged transformation in feminine attitudes, for good or for bad, may justly engage the attention of the law-makers when the reform of penal law is undertaken. They may enlarge the definition of 'adultery' to keep pace with the moving times. But, until then, the law must remain as it is. The law, as it is, does not offend either Article 14 or Article 15 of the Constitution. Incidentally, the demand of the petitioner that sexual relationship of a husband with an unmarried woman should also be comprehended with the definition of 'adultery' is a crusade by a woman against a woman. If the paramour of a married woman can be guilty of adultery, why can an unmarried girl who has sexual relations with a married man not be guilty of adultery ? That is the grievance of the petitioner.

Adultery Cases

In Earnest John White Vs Mrs. Kathleen Olive White and Others, 1958 SCR 1410 : AIR 1958 SC 0441, Husband filed dissolution of marriage on the ground of her adultery. Trial Court had granted the divorce and High Court had reversed the decree of divorce. Appeal before Supreme Court and Supreme Court held that:

The wife went to Patna and stayed with respondent No. 2 under an assumed name. They occupied the same room, i.e., room No. 10. There was undoubtedly a guilty inclination and passion indicated by the conduct of respondent No. 2 and there is no contrary indication as to the inclination and conduct of the wife. On the other hand her conduct as shown by the evidence is so entirely consistent with her guilt as to justify the conclusion of her having committed adultery with respondent No. 2 and therefore the finding of the Courts below as to the guilt should be reversed.

The appellant is husband of the respondent. On the petition filed by the respondent- under section 10 of the Act seeking judicial separation on the ground of adultery on the part of the appellant a decree for judicial separation was passed by the High Court of Karnataka on 6.1.1981. In the said order the Court considering the petition filed by the respondent, ordered that the appellant shall pay as maintenance Rs.100/- per month to the wife and Rs.75/- per month for the daughter. Since then the order has not been complied with by the appellant and the respondent has not received any amount towards maintenance. Thereafter, on 13.9.1983 the appellant presented a petition for dissolution of marriage by a decree of divorce on the ground that there has been no resumption of cohabitation as between the parties to the marriage for a period of more than one year after passing of the decree for judicial separation.

Held that:

Husband who continued to live in adultery even after decree at the instance of wife could not succeed in petition seeking decree for divorce and that section 23(1)(a) barred the relief.

Conclusion

The act of indulging in any kind of sexual relationship including intercourse outside marriage is termed as adultery. Adultery is counted as a criminal offence and substantial proofs are required to establish it. An amendment to the law in 1976 states that one single act of adultery is enough for the petitioner to get a divorce.